Org wants to see the two memos the FBI created after Jones tracking decision.

On Wednesday, the American Civil Liberties Union filed a formal legal complaint against the FBI in an attempt to compel the agency to release two GPS tracking-related memos.

In July, the ACLU requested two memos under the Freedom of Information Act (FOIA) that the FBI wrote in February. The memos came as a result of the Supreme Court decision in the United States v. Jones case, which established that the government had no right to place a GPS tracking device without a warrant on a suspect’s car.

However, other types of high-tech surveillance and monitoring continues by law enforcement on a nearly daily basis around the country. Cops are using everything from tap and trace, ping data, license plate surveillance, and other techniques as a way to keep tabs on suspects and innocent citizens without going through the threshold of a judicially reviewed probable-cause-driven warrant.

“We still have no idea what the FBI is doing in terms of tracking, post-Jones,” said Catherine Crump, the author of the Complaint for Injunctive Relief, and an attorney at the ACLU, in an interview with Ars.

“If all Jones means is that law enforcement agents have to track you through your phone instead of your car, it’s not going to mean much in the end.”

Despite the unanimous decision by the Supreme Court in January 2012 in the Jones case, legal scholars seem to now have more questions than answers.

"One question I have is whether the FBI is treating Jones as relevant to surveillance technologies that don’t require physical attachment to individuals or vehicles," wrote Woodrow Hartzog, a law professor at Samford University in Alabama, in an e-mail sent to Ars.

"For example, does the FBI think that Jones has relevance to facial and object recognition technologies deployed in public places? What about license plate readers? While the concurring opinions in Jones certainly questioned certain concepts such as the third-party doctrine and the idea of no privacy in public, the case was actually decided by the majority on much narrower, trespass-based grounds. I’d be interested to see if these guides are concerned primarily with the attachment and use of GPS devices, or whether they are mindful of the concurring opinions’ skepticism of the proposition that there can be no privacy at all in public spaces or in information that is shared with others. In a sense, Jones punted on some of the larger privacy issues surrounding modern surveillance technologies."

Up next: GPS tracking of your boat?

In a 12-minute video posted online, Weissmann spoke about two memos: one focused on the use of GPS tracking on forms of transportation beyond cars, the other speaking on how Jones applies to tracking methods outside of GPS (presumably like cellphone ping data).

“Is it going to apply to boats, is it going to apply to airplanes?” Weissmann asks in the video. “Is it going to apply at the border? What’s it mean for the consent that’s given by an owner? What does it mean if consent is given by a possessor? And this is all about GPS, by the way, without getting into other types of techniques.”

The ACLU is not the first group to compel the FBI to release these memos. The Electronic Frontier Foundation has also been working on their publication as well, according to Mark Rumold, a staff attorney at the EFF.

“We would just like to know how the government interprets the Supreme Court’s opinion,” Rumold told Ars. “Fundamentally, that’s the type of information that can’t be withheld under FOIA. The government’s interpretation of rules and laws that affect the general public—that's a fundamental precept, that secret law is an abomination.”

20 Reader Comments

I wouldn't be surprised if the memo read something like "We must obtain warrants for GPS tracking on cars. Going forward, use the GPS trackers on trucks, SUVs, motorcycles or anything that isn't a "car"."

“Fundamentally, that’s the type of information that can’t be withheld under FOIA...."

And anyone want to start the pools on how long it will take to get that information anyway, how many mind-numbingly absurd excuses will be presented as to why the information "can't" be supplied, and what percentage of the meaningful information in those two documents will be redacted our when a court finally forces the FBI to give them up?

There is a defined process for determining when they can track a person (roughly, obtain a search warrant from a judge using currently available evidence to establish probable cause).

The idea is to prevent the police from unilaterally declaring someone "suspicious" and tapping their communications, tracking their movements, and searching their possessions. All of those actions are legal powers of the police, held in check by the Fourth Amendment.

“Is it going to apply to boats, is it going to apply to airplanes?” Weissmann asks in the video. “Is it going to apply at the border? What’s it mean for the consent that’s given by an owner? What does it mean if consent is given by a possessor? And this is all about GPS, by the way, without getting into other types of techniques.”

Boat of a certain tonnage are already required to have AIS on board. Within a few years, AIS may be mandatory on all vessels over 20' long.

Worldwide ADS-B is becoming the standard in aircraft. This is a transponder that transmits speed, altitude, position, etc. Aircraft around you with a reciever will have you plotted on their radar and ground stations can use it to track aircraft in their airspace.

Nice article, I wander how this will actually turn out. There has been so much arguing /fighting between the executive and the judiciary lately in the US, it is surprising not to see some form of intervention from the legislative body to clarify things a bit. Are the election preventing this or is simply not the kind of thing congress will usually do for whatever reason?

America has become so incredibly paranoid since 9/11. Certainly 9/11 was a really good reason to take some action ( aka revenge) on the actors but WHY has it been necessary to take revenge on the 300 million+ Americans who are not terrorists?

I suppose one could argue that some of these measures help to deal with other criminals or even, at a stretch, illegal immigrants....but what about the other 299 million people.

It is a great pity that the Supreme Court did not deal with all this starting with the Patriot Act and the creation of your very own KGB ( aka Homeland security) and insist that the Constitution, amended, AS WRITTEN ruled the land.

Mainly where is the line drawn for privacy. It's a hard thing to determine as everyone has a different amount of freedoms that they are willing to give up in order to feel 'safe'.

Some people don't seem to care if their phone is tapped without a warrant, or if police keep a database with every place their license plate has ever been scanned automatically, others simply do. The right to privacy is a basic one for Americans, so much so that (as many have pointed out) it has been placed in our constitution.

I hope that the police come busting down your door and arrest you without explaining what it is you're accused of and then you get to sit in a detention cell for an indeterminate amount of time without any charges levied against you or any access to legal council. Then perhaps you will understand the overwhelming importance of required warrants, reasonable suspicion, court oversight, and authorities that abide by disclosure and policy for serving the public.

You clearly do not value your rights afforded by the Amendments of the Constitution (nor your Constitutional right, it seems). But there are plenty of us that do and we should not have to suffer for your lack of intelligence on the matter, nor for some cursed "War On. . ." crap that has been shoved down our throats.

America has become so incredibly paranoid since 9/11. Certainly 9/11 was a really good reason to take some action ( aka revenge) on the actors but WHY has it been necessary to take revenge on the 300 million+ Americans who are not terrorists?

Bin Ladin may be dead. But the terrorists won by 8 touch downs, 3 field goals and a couple of safeties. As soon as the US abandoned all the good things they were supposed to be about in favour of a more Soviet approach the terrorist had won.

“If all Jones means is that law enforcement agents have to track you through your phone instead of your car, it’s not going to mean much in the end.” - Once (Since?) phones are considered fair game for tracking in public, what other sorts of information can they access on your phone while you are in public and unbeknownst to you? Does their logic permit them to listen through your cell phone's microphone, and/or watch you through its video cameras in public? What happens if they are doing that while you are outside in public, but then move indoors (private). During that transition did law enforcement cease observing you immediately upon your entry into the private area? What are the legal implications of law enforcement observing "suspicious" behavior during the transition between public and private spaces? What happens if something suspicious is viewed or heard through your cell phone before law enforcement stops observing after your entry into a private area?